Constitution Project Files Brief in Support of Claims of Inadequate Legal Representation in Michigan

Amicus brief filed in the Michigan Supreme Court in the case of Duncan v. Michigan

CONTACT: Matthew Allee,  (202) 580-6922 or

WASHINGTON – Today, the Constitution Project, along with the National Association of Criminal Defense Lawyers, Brennan Center for Justice, and NAACP Legal Defense & Educational Fund, filed an amicus brief with the Michigan Supreme Court, urging the Court to decide that those bringing the case have a sufficient claim for relief based on the State’s failure to provide them with constitutionally adequate representation in their respective criminal cases. The plaintiffs in the case of Duncan v. Michigan are eight indigent defendants who request, on behalf of themselves and a class of indigent defendants in three Michigan counties, that the Court declare the current public defense system unconstitutional and order the State to provide constitutionally adequate representation in the future.

In an attempt to dismiss the litigation, the State of Michigan has argued that a United States Supreme Court opinion, Strickland v. Washington, prevents any person from suing for ineffective assistance of counsel until after he or she is convicted. However, the plaintiffs counter that Strickland is inapplicable in a case such as Duncan, which seeks prospective, class-wide relief. The Constitution Project and other amici support the plaintiffs’ argument that Strickland does not apply in this situation in the brief filed today.

The brief states, in part:

“According to the Complaint, because of systemic defects, including inadequate funding, supervision, and guidelines for the assignment of attorneys, criminal defendants in three Michigan counties routinely lack representation that meets even the basic standards of the legal profession. This lack of meaningful representation causes Plaintiffs to be routinely harmed throughout the course of their criminal proceedings – resulting in excessive bail or the unnecessary denial of bail, overcharging, wrongful convictions, guilty pleas that are not knowing and voluntary, and excessive sentences. Because the United States and Michigan constitutions ensure the right to counsel at all critical stages of a criminal proceeding, these harms . . . violate the Plaintiffs’ constitutional rights. Moreover, the prospective relief sought in the Complaint is the only way to address such constitutional injuries.”

The Constitution Project’s National Right to Counsel Committee, in its seminal report released last year, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, urged states to provide sufficient funding and oversight to public defense systems to comply with constitutional requirements. The Committee endorsed litigation seeking prospective relief on behalf of a class of indigent defendants when states fail to comply with those requirements. The bipartisan Committee consists of independent experts representing all segments of America’s justice system, including former judges, prosecutors, police, defenders, and victim advocates.

Click here to view a copy of the amicus brief of the Constitution Project, the National Association of Criminal Defense Lawyers, Brennan Center for Justice, and NAACP Legal Defense & Educational Fund.

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